CHAPTER 51-34 TELEPHONE RECORDS PROTECTION 2

3

4

5

2

3

51-34-01. Definitions

In this chapter, unless the context or subject matter otherwise requires: 1

"Customer" means the person who subscribes to telephone service from a telephone company or in whose name such telephone service is listed and to whom the telephone record pertains

"Procure" in regard to a telephone record means to obtain by any means, whether electronically, in writing, or in oral form, with or without consideration

"Telephone" means any device used by a person for voice or other electronic communications, in connection with the services of a telephone company, whether such voice or other electronic communications are transmitted in analog, data, or any other form

"Telephone company" means any person that provides commercial telephone services to a customer, regardless of the communications technology used to provide such service, including traditional wireline or cable telephone service; cellular, broadband PCS, or other wireless telephone service; microwave, satellite, or other terrestrial telephone service; and voice over internet telephone service

"Telephone record" means information retained by a telephone company that relates to the telephone number dialed by the customer or other person using the customer's telephone with such customer's permission, the incoming number of a call directed to a customer or other person using the customer's telephone with such customer's permission, or other data related to such call typically contained on a customer's telephone bill, including the times the call started and ended, the duration of the call, the time the call was made, and any charges applied. A telephone record does not include information collected and retained by a customer utilizing caller identification or similar technology or include a carrier network record

51-34-02. Unauthorized or fraudulent procurement, sale, or receipt of telephone records prohibited - Criminal penalties - Restitution

1

A person may not: a

b

Procure, attempt to procure, solicit, or conspire with another to procure, a telephone record of any resident of this state without the authorization of the customer or by fraudulent, deceptive, or false means; Sell, or attempt to sell, a telephone record of any resident of this state without the customer's authorization; or c. Receive a telephone record of any resident of this state when such record has been obtained without the customer's authorization or by fraudulent, deceptive, or false means

Any person who knowingly violates this section is guilty of a class C felony

In addition to any other punishment, a person found guilty of an offense under this section shall make restitution for any financial loss sustained by the customer or any other person who suffered financial loss as the direct result of the offense

51-34-03. Jurisdiction - Conduct outside this state - Venue - Multiple offenses

1. Notwithstanding section 29-03-01.1, a person who, while outside this state, engages in conduct in violation of section 51-34-02 is subject to prosecution under this chapter in the courts of this state. Except as provided in subsection 2, the venue is in the county in which the customer or victim resides or any other county in which any part of the crime occurred

2. When a person commits violations of this section in more than one county involving either one or more customers or victims or the commission of acts constituting an element of the offense, the multiple offenses may be consolidated for commencement of prosecution in any county where one of the offenses was committed

Page No. 1 51-34-04. Nonapplicability to valid legal process and law enforcement

1

This chapter does not apply to any person acting pursuant to a valid court order, warrant, or subpoena, a subpoena by the attorney general pursuant to this chapter or chapter 51-15, or other valid legal process

This chapter does not prevent any action by a law enforcement agency, or any officer, employee, or agent of such agency, to obtain telephone records in connection with the performance of the official duties of the agency as authorized by law

2

51-34-05. Permitted use by telephone companies

1

As otherwise authorized by law; This chapter does not prohibit a telephone company from obtaining, using, disclosing, or permitting access to any telephone record, either directly or indirectly through its agents or contractors: a

b. With the lawful consent of the customer; c

As may be necessarily incident to the rendition of the service or to the protection of the rights or property of the telephone company, or to protect the customer of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services; To a governmental entity, if the telephone company reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or To the national center for missing and exploited children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990

This chapter does not apply to or expand upon the obligations and duties of any telephone company to protect telephone records beyond those otherwise established by federal law or state law or both as set forth in section 51-34-06

This chapter does not apply to a telephone company, and its agents or representatives, who reasonably and in good faith act pursuant to subsection 2, notwithstanding any later determination that the action was not in fact authorized

d

e

2

3

51-34-06. Information security - No private claim for relief

1

Telephone companies that maintain telephone records of a resident of this state shall establish reasonable procedures to protect against unauthorized or fraudulent disclosure of the records which could result in substantial harm or inconvenience to a customer

This section does not authorize a private claim for relief for a violation of this section

2

51-34-07. Deceptive act or practice - Enforcement - Powers - Remedies - Venue

The state's attorney or attorney general may enforce this chapter. In enforcing this chapter, the attorney general has all the powers provided in chapter 51-15 and may seek all the remedies in chapter 51-15. A violation of this chapter is a violation of chapter 51-15. The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in addition to all other causes of action, remedies, and penalties under chapter 51-15 and as otherwise provided by law. The attorney general may bring an action pursuant to this section in either the county of the customer's residence or Burleigh County

Page No. 2